Wednesday, August 31, 2011

Lincoln on Equality and Liberty

Although Abraham Lincoln (of course) did not have a role in creating the U.S. Constitution, I think that the following quote from him is such an excellent and simple statement of the idea of equality as the foundation of the right to liberty that it needed to be posted, here:

"Well, I doubt not that the people of Nebraska are, and will continue to be as good as the average of people elsewhere. I do not say the contrary. What I do say is, that no man is good enough to govern another man, without that other's consent; I say this is the leading principle, the sheet-anchor of American Republicanism."

Tuesday, August 30, 2011

A Cat Which Is Out Of The Bag, Part 2 -- On the Origin and Purpose of Government, and the Right to Alter (or Abolish) It

In addition to those below, I also posted these:

Fairfax County Resolves, 1774. 2. Resolved that the most important and valuable Part of the British Constitution, upon which it's very Existence depends, is the fundamental Principle of the People's being governed by no Laws, to which they have not given their Consent, by Representatives freely chosen by themselves; who are affected by the Laws they enact equally with their Constituents; to whom they are accountable, and whose Burthens they share; in which consists the Safety and Happiness of the Community: for if this Part of the Constitution was taken away, or materially altered, the Government must degenerate either into an absolute and despotic Monarchy, or a tyrannical Aristocracy, and the Freedom of the People be annihilated.

Fairfax County Resolves, 1774. 5. Resolved that the Claim lately assumed and exercised by the British Parliament, of making all such Laws as they think fit, to govern the People of these Colonies, and to extort from us our Money with out our Consent, is not only diametrically contrary to the first Principles of the Constitution, and the original Compacts by which we are dependant upon the British Crown and Government; but is totally incompatible with the Privileges of a free People, and the natural Rights of Mankind; will render our own Legislatures merely nominal and nugatory, and is calculated to reduce us from a State of Freedom and Happiness to Slavery and Misery.

Virginia Declaration of Rights, 1776. II. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

...Virginia Declaration of Rights, 1776. III. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety and is most  effectually secured against the danger of maladministration; and that, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal.

The Declaration of Independence, 1776. [T]hat, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

Delaware declaration of rights, 1776. Section 1. That all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole.

...Delaware declaration of rights, 1776. Sect. 5. That persons intrusted with the Legislative and Executive Powers are the Trustees and Servants of the public, and as such accountable for their conduct; wherefore whenever the ends of government are perverted, and public liberty manifestly endangered by the Legislative singly, or a treacherous combination of both, the people may, and of right ought to establish a new, or reform  the old government.

Delaware Declaration of Rights, 1792. ...and as these rights are essential to their welfare, for the due exercise  thereof, power is inherent in them; and, therefore, all just authority in the institutions of political society is derived from the people, and established with their consent, to advance their happiness; and they may, for this end, as circumstances require, from time to time, alter their constitution of government.

Pennsylvania, 1776. IV. That all power being originally inherent in, and consequently derived from, the people; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.

...Pennsylvania, 1776. V. That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family, or set of men, who are a part only of that community: And that the community hath an indubitable, unalienable and indefeasible right to reform, alter, or abolish government in such manner as shall be by that community judged most conducive to the public weal.

Pennsylvania, 1790. Article IX. Of the origin of power, and the end of government. Sect. II. That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety and happiness: For the advancement of those ends, they have, at all times, an unalienable and indefeasible right to alter, reform, or abolish their government, in such manner as they may think proper.

Pennsylvania, 1838. Article IX. Power & government. Section II. All power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety and happiness; for the advancement of these ends, they have, at all times, an unalienable and indefeasible right to alter, reform or abolish their government, in such manner as they may think proper.

New Jersey, 1844. 2. All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right at all times to alter or reform the same, whenever the public good may require it.

Connecticut, 1818. Sec. 2. That all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and that they have at all times an undeniable and indefeasible right to alter their form of government in such manner as they may think expedient.

Massachusetts, 1780. Preamble. The end of the institution, maintenance and administration of government is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquility, their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness....

Massachusetts, 1780. Preamble. ...The body-politic is formed by a voluntary association of individuals; it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a Constitution of Government, to provide for an equitable mode of making laws, as well as for an impartial interpretation and a faithful execution of them, that every man may, at all times, find his security in them....

Massachusetts, 1780. Art. V. All power residing originally in the people, and being derived from them, the several magistrates and officers of government vested with authority, whether legislative, executive, or judicial, are the substitutes and agents, and are at all times accountable to them.

Massachusetts, 1780. Art. VII. Government is instituted for the common good, for the protection, safety, prosperity, and happiness of the people, and not for the profit, honor, or private interest of any one man, family, or class of men; therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government, and to reform, alter, or totally change the same when their protection, safety, prosperity, and happiness require it.

Maryland, 1776. I. That all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole.

Maryland, 1776. IV. That all persons invested with the legislative or executive powers of government are the trustees of the public, and, as such, accountable for their conduct; wherefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old or establish a new government. The doctrine of non-resistance, against arbitrary power and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

South Carolina, 1790. Article IX. Section 1. All power is originally vested in the people; and all free governments are founded on their authority, and are instituted for their peace, safety, and happiness.

New Hampshire, 1783. I. [T]herefore, all government of right originates from the people, is founded in consent, and instituted for the general good.

...New Hampshire, 1783. III. When men enter into a state of society, they surrender up some of their natural rights to that society, in order to insure the protection of others; and without such an equivalent the surrender is void.

...New Hampshire, 1783. VII. All power residing originally in and being derived from the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them.

...New Hampshire, 1783. X. Government being instituted for the common benefit, protection, and security of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old or establish a new government. The doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.

Virginia, 1776. SEC. 2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

...Virginia, 1776. SEC. 3. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that, when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

North Carolina, 1776. I. That all political power is vested in and derived from the people only.

Rhode Island, 1842. Article I. In order effectually to secure the religious and political freedom established by our venerated ancestors, and to preserve the same for our posterity, we do declare that the essential and unquestionable rights and principles hereinafter mentioned, shall be established, maintained, and preserved, and shall be of paramount obligation in all legislative, judicial and executive proceedings.

...Rhode Island, 1842. Article I. Section 1. In the words of the Father of his Country, we declare, that "the basis of our political systems is the right of the people to make and alter their constitutions of government; but that the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all."

...Rhode Island, 1842. Article I. 2. All free governments are instituted for the protection, safety, and happiness of the people. All laws, therefore, should be made for the good of the whole; and the burdens of the State ought to be fairly distributed among its citizens.

Vermont, 1777. V. That all power being originally inherent in, and consequently, derived from, the people; therefore, all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.

...Vermont, 1777. VI. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family or set of men, who are a part only of that community; and that the community hath an indubitable,  unalienable and indefeasible right, to reform, alter or abolish government, in such manner as shall be, by that community, judged most conducive to the public weal.

Vermont, 1786. VI. That all power being originally inherent in, and consequently derived from the people; therefore, all officers of government, whether legislative or executive, are their trustees and servants, and at all times, in a legal way, accountable to them.

...Vermont, 1786. VII. That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation, or community: and that the community hath an indubitable, unalienable, single man, family, or set of men, who are a part only of that community: and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged to be most conducive to the public weal.

Vermont, 1793. Article VI. That all power being originally inherent in, and consequently derived from, the people; therefore, all officers of government, whether legislative or executive, are their trustees and servants, and at all times, in a legal way, accountable to them.

Vermont, 1793. Article VII. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single man, family, or set of men, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.

Kentucky, 1792. Article XII. II. That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety and happiness. For the advancement of these ends, they have at all times an unalienable and indefeasible right to alter, reform, or abolish their government, in such manner as they may think proper.

Kentucky, 1798. Article VI. 2. That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness: For the advancement of these ends, they have at all times an unalienable and indefeasible right to alter, reform, or abolish their government, in such manner as they may think proper.

Tennessee, 1796. Article XI. Section 1st That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends, they have at all times an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.

Tennessee, 1796. Article XI. Section 2nd That, government being instituted for the common benefit, the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind.

Tennessee, 1834. Section 1st That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety and happiness; for the advancement of those ends, they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.

Tennessee, 1834. Section 2nd That government being instituted for the common benefit, the doctrine of non-resistance against arbitrary power and oppression, is absurd, slavish, and destructive of the good and happiness of Mankind.

Ohio, 1803. ...[A]nd every free republican government, being founded on their sole authority, and organized for the great purpose of protecting their rights and liberties, and securing their independence; to effect these ends, they have at all times a complete power to alter, reform or abolish their government, whenever they may deem it necessary.

Indiana, 1816. Article I. Sect. 2. That all power is inherent in the people; and all free Governments are founded on their authority, and instituted for their peace, safety and happiness. For the advancement of these ends, they have at all times and unalienable and indefeasible right to alter or reform their Government in such manner as they may think proper.

Mississippi, 1817. Section 2. That all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and, therefore, they have, at all times, an unalienable and indefeasible right to alter or abolish their form of government, in such manner as they may think expedient.

Mississippi, 1832. Sect. 2. That all political power is inherent in the people, and all free governments are founded on their authority, and established for their benefit; and, therefore, they have at all times an unalienable and indefeasible right to alter or abolish their form of government, in such manner as they may think expedient.

Illinois, 1818. Article VIII. Sec. 2. That all power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety, and happiness.

Alabama, 1819. SEC. 2. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and, therefore, they have, at all times an unalienable and indefeasible right to alter, reform, or abolish their form of government, in such manner as they may think expedient.

Maine, 1820. Article I. Sect. 2. All power is inherent in the people; all free governments are founded in their authority and instituted for their benefit; they have therefore an unalienable and indefeasible right to institute government, and to alter, reform, or totally change the same, when their safety and happiness require it.

Missouri, 1820. Article XIII. 1. That all political power is vested in, and derived from the people:

...Missouri, 1820. Article XIII. 2. That the people of this state have the inherent, sole, and exclusive right of regulating the internal government and police thereof, and of altering and abolishing their constitution and form of government, whenever it may be necessary to their safety and happiness:

New York Ratification, proposed amendments, 1788. That all Power is originally vested in and consequently derived from the People, and that Government is instituted by them for their common Interest Protection and Security.

...New York Ratification, proposed amendments, 1788. That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness...

North Carolina Ratification, Declaration of Rights, 1789. 2d. That all power is naturally vested in, and consequently derived from the people; that magistrates therefore are their trustees, and agents, and at all times amenable to them.

...North Carolina Ratification, Declaration of Rights, 1789. 3d. That Government ought to be instituted for the common benefit, protection and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind.

Rhode Island and Providence Plantations Ratification, declaration of rights, 1790. 2d That all power is naturally vested in, and consequently derived from the People; that magistrates therefore are their trustees and agents, and at all times amenable to them.

...Rhode Island and Providence Plantations Ratification, declaration of rights, 1790. 3d That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness:

Virginia Ratification, commentary and proposal, 1788. Second. That all power is naturally vested in and consequently derived from the people; that Magistrates, therefore, are their trustees and agents and at all times amenable to them.

...Virginia Ratification, commentary and proposal, 1788. Third, That Government ought to be instituted for the common benefit, protection and security of the People; and that the doctrine of non-resistance against arbitrary power and oppression is absurd slavish, and destructive of the good and happiness of mankind.

Roger Sherman's draft of the Bill of Rights. The powers of government being derived from the people, ought to be exercised for their benefit, and they have an inherent and inalienable right to change or amend their political constitution, whatever they judge such change will advance their interest and happiness.

James Madison, in the House of Representatives, the First Congress, June 8, 1789. First. That there be prefixed to the constitution a declaration—That all power is originally instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety. That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.

Monday, August 29, 2011

A Cat Which Is Out Of The Bag, Part 1 -- Certain Inalienable Rights

Since I posted the following (which I collected last year) on the Facebook page for the Online Library of Liberty, I'd might as well post them here.  They are on the topic of the rights to Life, Liberty, and Property:


Declaration of Rights and Grievances, 1774. 1. That they are entitled to life, liberty, and property, and they have never ceded to any sovereign power whatever, a right to dispose of either without their consent.

Virginia Declaration of Rights, 1776. I. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

The Declaration of Independence, 1776. That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness...

Delaware declaration of rights, 1776. Sect. 10. That every member of society hath a right to be protected in the enjoyment of life, liberty and property...

Delaware Declaration of Rights, 1792. Though divine goodness all men have, by nature, the rights of worshipping and serving their Creator according to the dictates of their consciences, of enjoying and defending life and liberty, of acquiring and protecting reputation and property, and, in general, of attaining objects suitable to their condition, without injury by one to another; and as these rights are essential to their welfare, for the due exercise thereof, power is inherent in them; ...

Pennsylvania, 1776. I. That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

Pennsylvania, 1776. VIII. That every member of society hath a right to be protected in the enjoyment of life, liberty and property...

Pennsylvania, 1790. Article IX. Of the equality and rights of men. Section I. That all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property and reputation, and of pursuing their own happiness.

Pennsylvania, 1838. Article IX. Rights of life liberty property &c. Section I. All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

New Jersey, 1844. 1. All men are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.

Massachusetts, 1780. Preamble. The end of the institution, maintenance and administration of government is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquility, their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness....

Massachusetts, 1780. Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

Massachusetts, 1780. Art. X. Every individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws.

New Hampshire, 1783. I. All men are born equally free and independent ... All men have certain natural, essential, and inherent rights, among which are the enjoying and defending life and liberty, acquiring, possessing, and protecting property, and, in a word, of seeking and obtaining happiness.

New Hampshire, 1783. XII. Every member of the community has a right to be protected by it in the enjoyment of his life, liberty, and property...

Virginia, 1776. SECTION 1. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

New York, 1683. For The better Establishing the Government of this province of New Yorke and that Justice and Right may be Equally done to all persons within the same....

Vermont, 1777. I. That all men are born equally free and independent, and have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending life and liberty; acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

Vermont, 1777. IX. That every member of society hath a right to be protected in the enjoyment of life, liberty and property...

Vermont, 1786. I. THAT all men are born equally free and independent, and have certain natural, inherent and unalienable rights; amongst which are, the enjoying and defending life and liberty-acquiring, possessing and protecting property-and pursuing and obtaining happiness and safety.

Vermont, 1786. X. That every member of society hath a right to be protected in the enjoyment of life, liberty and property...

Vermont, 1793. Article I. That all men are born equally free and independent, and have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety:

Vermont, 1793. Article IX. That every member of society hath a right to be protected in the enjoyment of life, liberty, and property...

Ohio, 1803. Article VIII. section 1. That all men are born equally free and independent, and have certain natural, inherent and unalienable rights; amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety...

Indiana, 1816. Article I. Sect. 1st. That the general, great and essential principles of liberty and free Government may be recognized and unalterably established; WE declare, That all men are born equally free and independent, and have certain natural, inherent, and unalienable rights; among which are the enjoying and defending life and liberty, and of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

Illinois, 1818. Article VIII. That the general, great, and essential principles of liberty and free government may be recognized and unalterably established, WE DECLARE: Sec. 1. That all men are born equally free and independent, and have certain inherent and indefeasible rights; among which are those of enjoying and defending life and liberty, and of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

Maine, 1820. Article I. Section 1. All men are born equally free and independent, and have certain natural, inherent and unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness.

New York Ratification, proposed amendments, 1788. That the enjoyment of Life, Liberty and the pursuit of Happiness are essential rights which every Government ought to respect and preserve.

North Carolina Ratification, Declaration of Rights, 1789. 1st. That there are certain natural rights of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life, and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

Rhode Island and Providence Plantations Ratification, declaration of rights, 1790. In That there are certain natural rights, of which men when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of Life and Liberty, with the means of acquiring, possessing and protecting Property, and pursuing and obtaining happiness and safety.

Virginia Ratification, commentary and proposal, 1788. First, That there are certain natural rights of which men, when they form a social compact cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

James Madison, in the House of Representatives, the First Congress, June 8, 1789. First. That there be prefixed to the constitution a declaration—That all power is originally instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and offering property, and generally of pursuing and obtaining happiness and safety.

Tuesday, August 16, 2011

Update on the Resolution VI Debate

Kurt Lash completed his series of posts on Resolution VI (from the Constitutional Convention), which resolution some people had argued should be used as reason to broadly construe the powers of Congress.  For the complete series, along with Prof. Lash's reply to Jack Balkin's response, visit the archive of his posts for the Volokh Conspiracy.  (For a different point of view, including direct responses to Prof. Lash's posts, see Neil Siegel's archive.)

Whenever I discuss constitutional interpretation with people, I try to settle a few fundamental points up front, best stated as I put it once before: "that a legitimate constitutional interpretation is the plausible product of a sincere attempt, beginning with and emphasizing the constitutional text, to determine its original meaning," where the original meaning is the answer to the question, What was the meaning of the rule that its makers understood themselves to have been making?  As the discussion between the participants in the discussion on the Volokh site (and others who are a part of the same discussion, but not on the Volokh site) demonstrates, there are legitimate complications in applying these; for example, there is the question of whether to consider original public meaning or an alternative.  It is as important for proponents of a faithful and honest application of the Constitution to understand this as it is for them to agree, at the outset, that the text is the first, most important, and generally conclusive indicator of its meaning, and that any interpretation ought to be both plausible and honestly reached.

Update (6:38 PM EST, August 16, 2011): In my first sentence, above, I indicated that those who advocate using Resolution VI to interpret the Article I, Section 8 powers of Congress use it to argue for greater federal power.  It is true that this idea has been applied in this way, but it would have been better for me to point out again, as I did a few days ago, that it could very well be used to argue against federal power exceeding certain boundaries, as well.  Additionally, I think it would make sense for me to link to Jack Balkin's response to Lash, so that he may speak for himself.

Monday, August 15, 2011

The Nature of Crime, According to Blackstone

Again, the following is from Blackstone's Commentaries on the Laws of England.  It is still generally true as a description of crimes, but if Blackstone meant that it must be true of crimes, then I think that we have moved away from this idea; a crime is now whatever a legislature makes a crime, provided that an applicable constitution does not forbid its doing so.

“In all cases the crime includes an injury: every public offence is also a private wrong, and somewhat more; it affects the individual, and it likewise affects the community. Thus treason is in imagining the king’s death involves in it conspiracy against an individual, which is also a civil injury: but as this species of treason in its consequences principally tends to the dissolution of government, and the destruction thereby of the order and peace of society, this denominates it a crime of the highest magnitude.”

I am not yet certain that it would be wise (or defensible, on legal grounds) to encourage or allow courts to impose this kind of limitation on a legislature, independent of any constitutional provision, but many well-established rules of this kind can be found in the works of Blackstone and other authors on the law, from our founding era and times preceding it.  It was unnecessary to include most of them in a bill of rights or elsewhere in a constitution because they were recognized even without such inclusion.  To the extent that these rules actually do make sense, wouldn't it make sense to collect and re-establish them, using methods to re-establish them that we would admit are legitimate and binding?

Tuesday, August 9, 2011

The History of the Enumeration of Powers

Let us watch for future posts on this topic from Kurt Lash, guest-blogging at the Volokh Conspiracy (as he announces at the end of the second, currently top, post that he will follow it with others; see also his article on the same topic).  That topic is the idea that Article I, Section 8 of the United States Constitution should be interpreted in light of certain proposals at the Constitutional Convention to describe, rather than list, the powers of Congress.  Evidently, this idea has been used by some authors in order to argue in favor of greater federal power, to loosen or transcend the limits inherent in this listing of powers (made explicit, of course, by the Tenth Amendment).  However, Lash does not agree that those historical proposals to describe, rather than to enumerate, the powers of Congress, were connected with the final, definitive constitutional enumeration in the way that these authors claim.

While reading records from the Constitutional Convention, when I first noticed the proposals to permit Congress to act in the national interest in cases where the states were thought to be "separately incompetent," I, too, understood them as part of the history (and helping to indicate the purpose) of the enumerated powers of Congress.  I would have used this idea to argue against powers that have been unreasonably inferred by Congress (or attributed to Congress by courts, needing a constitutional explanation for various things that Congress has done, and sanctioned by those same courts).  Once I succeed in accessing Lash's article, or else once I have read his remaining guest posts on this topic, I hope to offer a more complete commentary on it.

Until then, here are some notes, slightly edited, that I took this March, from Madison's notes on the Constitutional Convention:

May 29, 1787: Randolph’s resolution #6: “...that the national legislature ought to be empowered to enjoy the legislative rights vested in Congress by the Confederation; and, moreover, to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation...” (Before the ellipses was the proposition that each branch should have the power to originate acts, and after the second ellipses was the power “to negative all laws passed by the several states, contravening, in the opinion of the national legislature, the articles of union, or any treaty subsisting under the authority of the Union; and to call forth the force of the Union against any member of the Union failing to fulfil its duty under the articles thereof.”)

As of June 19, 1787, Randolph’s resolutions (#6) read, “That the national legislature ought to be empowered to enjoy the legislative rights vested in Congress by the Confederation; and, moreover, to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation...” followed by the power to negative laws of states that violate the Constitution.

On July 17, 1787, Mr. Sherman moved to change this to, “To make laws binding on the people of the United States in all cases which may concern the common interests of the Union; but not to interfere with the government of the individual states, in any matters of internal police, which respect the government of such states only, and wherein the general welfare of the United States is not concerned,” which did not pass.  However, he did read an enumeration of powers, in support of his idea.

Then, Mr. Bedford moved to change the “and moreover” part to “and moreover to legislate, in all cases, for the general interests of the Union; and also in those to which the states are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation,” and this did pass in the affirmative. ... For a while.

I may need to take a second (or third) look at all of this.

Tuesday, August 2, 2011

Blackstone on Legal Interpretation

William Blackstone, from his Commentaries on the Laws of England:

“The fairest and most rational way to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable.  And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.  Let us take a short view of them all.”

“1. Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. … Again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. … Lastly, where words are clearly repugnant in two laws, the latter law takes the place of the elder: leges posteriores priores contrarias abrogant is a maxim of universal law, as well as of our own constitutions. And accordingly it was laid down by a law of the twelve tables at Rome, quod populus postremum jussit, id jus ratum esto.

“2. If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate.”

“3. As to the subject matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end.”

“4. As to the effects and consequence, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them.”

“5. But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.”